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S 23 6 1 "4 FILED WITH PERMISSION SUPREME SOURT COPY “FILED. IN THE SUPREME COURT AUG -2 2016 OF THE STATE OF CALIFORNIA Frank A. McGuire Clerk CHURCH OF SCIENTOLOGY INTERNATIONAL, a corporate entity PUY Petitioner, ¥ CRC SUPERIOR COURT FOR LOS ANGELES COUNTY 8.25(b}, Respondent. LaurA ANN DECRESCENZO Real Party in Interest On Writ Petition From The Superior Court For the State of California For the County of Los Angeles, Case No. BC 411018 Hon. John P. Doyle Court of Appeal, Second District, D No. B275249 PETITION FOR REVIEW KENDALL BRILL & KELLY LLP RABINOWITZ, BOUDIN, STANDARD, Bert H. Deixler (70614) KRINSKY & LIEBERMAN, LLP bdeixler@kbkfirm.com Eric M. Lieberman (pro hac vice) Nicholas F. Daum (236155) 45 Broadway, Suite 1700 ndaum@kbkfirm.com New York, NY 10006 10100 Santa Monica Blvd., Suite 1725 Telephone: 212.254.1111 Los Angeles, California 90067 Facsimile: 212.674.4614 Telephone: 310.556.2700 Facsimil 310.556.2705 Attorneys for Defendant and Petitioner Church of Scientology International 2355932 Ss IN THE SUPREME COURT OF THE STATE OF CALIFORNIA on CHURCH OF SCIENTOLOGY INTERNATIONAL, a corporate entity Petitioner, v. SUPERIOR COURT FOR Los. ANGELES COUNTY Respondent. ‘Laura ANN DECRESCENZO Real Party in Interest On Writ Petition From The Superior Court For the State of California For the County of Los Angeles, Case No. BC 411018 Hon. John P. Doyle Court of Appeal, Second District, Division Three No. B275249 PETITION FOR REVIEW — KENDALL BRILL & KELLY LLP RABINOWITZ, BOUDIN, STANDARD, Bert H. Deixler (70614) KRINSKY & LIEBERMAN, LLP bdeixler@kbkfirm.com Eric M. Lieberman (pro hac vice) Nicholas F. Daum (236155) 45 Broadway, Suite 1700 ndaum(@kbkfirm.com New York, NY 10006 10100 Santa Monica Blvd., Suite 1725 Telephone: 212.254.1111 Los Angeles, California 90067 Facsimile: 212.674.4614 Telephone: 310.556.2700 Facsimile: 310.556.2705, Attorneys for Defendant and Petitioner Church of Scientology International 2855932 CONCLUSION... 2355932 QUESTIONS PRESENTED INTRODUCTION .. STATEMENT OF THE CASE - REASONS WHY REVIEW IS NECESSARY .. se Poa TABLE OF CONTENTS The Scientology Religion And Its Religious Order. The Plaintiff's Claims... The Church’s Motion For Summary Judgment.. The Disqualification The Church’s Writ Petitio Review Is Necessary To Clarify The Effect Of A Belated Ethical Disclosure By A Judicial Officer On Prior Rulings... Review Is Necessary To Clarify That Summary Judgment Not Only is Available to Determine Application of the Ministerial Exception, But That It Is A Preferred Procedure 1. The Development Of The Ministerial Exception Doctrine 2. The Doctrine Applies Broadly To Church Officials 3. The Doctrine Applies Here... TABLE OF AUTHORITIES Page(s) Cases Alcazar v. Corporation of the Catholic Archbishop of Seattle, 598 F.3d 668 (9th Cir. 2010)... .24, 25, 26, 27 Alcazar v. Corporation of the Catholic Archbishop of Seattle, 627 F.3d 1288 (9th Cir. 2010). 24, 28 Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698 (7th Cir. 2003), Bollard v. California Province of the Society of Jesus, 196 F.3d 940 (9th Cir. 1999). NLRB v: Catholic Bishop of Chicago, 440 US. 490 (1979)... Catholic Charities of Sacramento, Inc. v. Superior Court, 32 Cal. 4th 527 (2004)... Christie v. City of El Centro, 135 Cal. App.4th 767 (2006). Claire Headley v. Church of Scientology Intl., 2010 WL 3184389 (C.D. Cal. 2010). Giometti v. Etienne, 219 Cal. 687 (1934)... Gunn v. Mariners Church, 167 Cal.App.4th 206 (2008)... Headley v. Church of Scientology Intl, 687 F.3d 1173 (9th Cir. 2012)... Hernandez v. Vitamin Shoppe Indus., Inc., 174 Cal.App.4th 1441 (2009). Higgins v. Maher, 210 Cal. App.3d 1168 (1989). 2855552 2 Hope International University v. Superior Court, 119 Cal.App.4th 719 (2004) Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694 (U.S. 2012).. In Bates v. Rubio’s Restaurants, Inc., 179 Cal.App.4th 1125 (2009). Kedroff v. St. Nicholas Cathedral, 344 USS, 94 (1952)... Marc Headley, v. Church of Scientology Intl., 2010 WL 3157064 Maxwell v. Brougher, 99 Cal. App. 2d 824 (1950)... Presbyterian Church v. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 U.S. 440 (1969). Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 Cal.App.4th 417 (2005).. EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795 (4th Cir. 2000). Ross v. Metro. Church of God, 471 F. Supp. 2d 1306 (N.D. Ga. 2007) Rossco Holdings Inc. v. Bank of America, 149 Cal.App.4th 1353 (2007). Rweyemamu v. Cote, 520 F.3d 198 (2d Cir. 2008). Schleicher v. Salvation Army, 518 F.3d 472 (7th Cir. 2008).. Schmoll v. Chapman Univ., 70 Cal.App.4th 1434 (1999)... Serbian Eastern Orthodox Diocese v. Milivojevich, 426 US. 696 (1976)... 2855932 3 Shulman v. Group W Prods., Ine., 18 Cal. 4th 200 (1998). Silo v. CHW Med. Found., 27 Cal. 4th 1097 (2002) Smith v. Raleigh Dist. of the North Carolina Conference of the United Methodist Church, 63 F. Supp. 2d 694 (E.D.N.C. 1999)... Tatum v. 8. Pac. Co., 250 Cal.App.2d 40 (1967).. 18,19 Urias v. Harris Farms, Ine., 234 Cal.App.3d 415 (1991)... Watson v, Jones, 80 U.S. (13 Wall.) 679 (1871)... Werft v. Desert Sw. Annual Conference, 377 F.3d 1099 (9th Cir. 2004). Statutes Code of Civil Procedure Section 170.1 Section 170.3(a)(4) Section 170.3(d).. Constitutional Provisions United States Constitution First Amendment -passim 2855932 4 sine sinsdaatennandi aise I. QUESTIONS PRESENTED This petition, unusually, raises both an important question of judicial administration and a significant issue concerning the role of the trial judge and the jury in cases involving the constitutional rights of religious organizations. The two questions at issue are the following: 1) Where an order denying a motion for summary judgment is issued by a judicial officer who was disqualified at the time of the order for reasons not yet apparent to the officer but which emerged shortly after he issued the order, causing him to disqualify himself from any further involvement in the case, was he required to void his prior order denying the motion for summary judgment because he was disqualified at the time he issued it? 2) May atrial court deny a motion for summary judgment that is based in major part on the First Amendment religion clauses and the ‘mi isterial exception” that derives from those clauses merely on the ground that in certain situations a party’s invocation of the ministerial exception may be a subterfuge and on the principle that summary judgment is a highly disfavored procedure to be granted “once every three leap years,” where the trial court does not even address the judicially recognized crite for applying the ministerial exception or whether the undisputed facts fall clearly within those criteria? 2assen2 1 Either question is of great enough significance to warrant review by this Court on its own. Both questions are squarely raised in this case. I. INTRODUCTION Below, a writ of mandate was not only appropriate but necessary, for two separate reasons. Both reasons are of great significance for the jurisprudence of this State, and unlikely to be raised in appeals from final judgment. Yet the Court of Appeal did not act. This is the rare denial of a writ of mandate that demands intervention by this Court. First, the petition involves an order issued by a disqualified judicial officer. Days after entering an order denying summary judgment, the Superior Court judge disclosed a potentially-disqualifying family relationship under Canon 3(B)(2) of the Code of Judicial Ethics. The family relationship was known to the judge before he issued the summary judgment order. It was not known to the parties. After receiving the trial judge’s disclosure, Petitioner explained that at least one member of the judge's family was a planned trial witness. he trial judge then disqualified himself from the action. But in so doing he refused to void his prior summary judgment order. He did so even though if the required judicial disclosure had been made earlier (which it should have been) the grounds for disqualification would have been clear, causing both sides to seek and the judge to order recusal before hearing and deciding the motion, That was error that cannot be corrected after final judgment. Orders on judicial 2885032 2 disqualification are, by statute, expressly reviewable only by writ, see Code of Civil Procedure Section 170.3(d). The court of appeals refusal to consider the question cries out for review by this Court Second, the petition seeks review of an order which infringes upon a core protection guaranteed by the First Amendment to the United States Constitution. That protection precludes interference by secular courts on issues of religious doctri ie and the condition of employment of ministers. ‘The purpose of the immunity is precisely to avoid judicial interference with religion—including the interference caused by the process of enduring a trial on the merits. Thus, an improper denial of that immunity cannot be corrected after trial and final judgment. Because of the very nature of the exception, it. entails an immunity on the part of a religious institution from the intrusive examination into religious doctrine inherent in the suit. Such an immunity implicates a somewhat stronger interest than the more typical writ situation where a litigant is simply asserting the right to win at the summary judgment level. . . . The very process of review itself threatens to entangle the court in a sectarian controversy. Hope International University v. Superior Court, 119 Cal.Appth, 719, 730 (2004) (emphasis added). The Superior Court abdicated its judicial duty to adjudicate at all whether the immunity provided by the ministerial exception applied to the claims here, holding that the question by its very nature could not be 255932 3 | resolved by summary judgment. This was fundamental error going to the power of the court to subject the church to trial by jury. Determination of the applicability of the ministerial exception is a question of law to be decided by the court. See Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 S. Ct. 694 (U.S. 2012) (holding ministerial privilege applied as a matter of law); Smith v. Raleigh Dist. of the North Carolina Conference of the United Methodist Church, 63 F. Supp. 2d 694, 706 (E.D.N.C. 1999) (“The applicability of the ministerial exception is a question of law for the court.”), Summary judgment is a preferred method of adjudicating such questions. Hope International University v. Superior Court. Because the issues go to the power and duties of a trial court in the exercise of its judicial duties, and because the decisions below are not in accord with clearly established judicial precedent, this Court should exercise its power to review both questions presented. Il. STATEMENT OF THE CASE A. The Scientology Religion And Its Religious Order The Scientology religion is based upon the research, writings and lectures of its Founder, L. Ron Hubbard. The basic tenet of Scientology is that humans are immortal spiritual beings, called “thetans,” who have lived many lifetimes and have the potential of infinite survival. Only through exploration of his/her past, through participation in Scientology practices, 2855932 4 can a thetan overcome the negative experiences that reduce his/her inherent spiritual ability. Scientologists believe that the principle of existence is compartmented into eight “dynamics”: individual; family; groups; mankind; living things; material things; spirituality; and infinity, which, in plaintifi’'s words, is “considered the God dynamic.” A thetan’s spiritual advance in Scientology is across all dynamics, as a necessary component to spiritual salvation, A Scientologist is expected to act in a manner that achieves “the greatest good for the greatest number of dynamics,” a core belief of the religion that plaintiff always tried to follow. Scientology’s religious services include “training” and “auditing.” ‘Training involves the study of the Scripture. Auditing is ministered in confidential one-on-one sessions between a specially trained individual called an auditor and a parishioner. ‘The auditor uses a device called an “E- Meter” to assist in locating and removing barriers to spiritual progress from a person’s past and current lives. Ethics is Scientology's religious moral code. Past or current unethical acts interfere with one’s spiritual progress. Scientology ethics counseling includes confessional through which a parishioner confronts his ethical transgressions, not only in his current life but in “past lives,” thereby overcoming that barrier to spiritual progress. Some of these 2355932 5 confessionals are called “sec checks.” They are an essential part of the religious practices of Scientology. Some Scientologists choose to devote their lives to work for their religion full time, in the same manner as monks, nuns, priests, and other clergy. They do so by committing to join Scientology's religious order, known as the “Sea Organization” or “Sea Org.” To join the Sea Org, a Scientologist must undertake extensive training and study, pass a fitness examination, and receive certification. Sea Org members sign a symbolic commitment of one billion years, reflecting their dedication to service in furtherance of the religion and the salvation of humanity and their awareness of themselves as immortal spiritual beings. Potential Sea Org members are told they will be required to work long hours, they will be subject to lifestyle and disciplinary restrictions on their Movements and contacts, and they may be assigned anywhere in the world to further the goals of the religion. See Headley v. Church of Scientology Intl, 687 F.3d 1173, 1174-75 (9th Cir. 2012) (“The Sea Ore’s lifestyle constraints include strict policies on outside communications, marriage, and children. Sea Org members’ mail is censored and phone calls are monitored as part of ministry discipline and policy”). Sea Org members serve without expectation of compensation. They share tradition and lifestyle. They wear uniforms when on duty and have a merit-based maritime rank and rating system and etiquette. They live communally and eat in common dining 2855932 6 halls. The Church provides them with all living necessities and a small weekly allowance for personal incidentals. Sea Org members are held to the highest ethical standards and agree to submit to the discipline of the Sea Org. See Headley v. Church of Scientology Intl, 687 F.3d at 1175 (“Sea Org members learn that strict discipline is central to preserving the integrity of Scientology's ministry. If a member fails to meet Scientology's ethical standards, he may be disciplined”). Ifa Sea Org member is found to have committed serious ethical violations, he/she may be asked to participate in a program of spiritual rehabilitation, called the Rehabilitation Project Force (“RPF”). In accepting participation in the RPF, Sea Org members agree to undergo close supervision of their activities, to remain in relative isolation from other Sea Org members, and to have limited contact with others while undergoing their spiritual rehabilitation, They engage in religious study and auditing and physical labor. After one “graduates” from the RPE, he/she will resume a Sea Org position. If a Sea Org member chooses not to participate in the RPF, he/she will be dismissed from the Sea Org and from all staff positions. Such lifestyle restrictions and ecclesiastical discipline are common to religious orders. A Sea Org member “may formally withdraw his vows and leave the ministry through a process called ‘routing out,”” Headley v. Church of Scientology Intl, 687 F.3d at 1175, which often includes participating in Scientology ethics programs and the performance of manual chores. Ifa 2358932 7 Sea Org member chooses to leave without routing out, other Sea Org members may attempt to persuade her to stay or to return; such efforts reflect the belief among Sea Org members that they are attempting to achieve the salvation of the individual. See Headley, 687 F.3d at 1175. A person who insists on leaving or refuses to return, without routing out, may be subject to ecclesiastical discipline, including, but not necessarily, being declared a “suppressive person,” which is the functional equivalent of being shunned or excommunicated. [d. “Such practices are also typical of religious orders.” Id. B. The Plaintiff's Claims ‘The action was brought by Plaintiff-Real Party in Interest Laura DeCrescenzo (“DeCrescenzo”), a former member of the Scientology religion. DeCrescenzo belonged to the Sea Org. The defendants are Petitioner-Defendant Church of Scientology International (“Church”) and another Scientology-affiliated organization, co-defendant Religious Technology Center (“RTC”). DeCrescenzo alleged that as a member of the Sea Org she was subject to indoctrination and psychological pressure to have an abortion so she could continue to serve the religious order. She claimed that she participated in the RPF against her will. She claimed that she was required to undergo allegedly invasive confessional practices known as “sec checks.” And she claimed she was required, over the more than 10-year period in which she was a member of the religious order, to 2855932 8 perform a heavy work schedule without being paid minimum wages or overtime. In fact, as the Church demonstrated, DeCrescenzo was a committed Scientologist and member of a religious order, and willingly took all of the actions as to which she now complains—including her abortion, her time in the RPF, her work duties, and her participations in “sec checks"—as part of her religious practice and without force. DeCrescenzo has now renounced her former religion and claimed that she was “brainwashed” into her former religious beliefs, but there is no evidence whatsoever that DeCrescenzo at the time of her membership in the religious order was forced to do anything against her will. To the contrary, the record is clear that her actions stemmed from religious conviction, albeit religious conviction which she has now renounced. For example, DeCrescenzo’s supposedly “forced abortion” was in fact indisputably a decision which she made, after consulting with her husband, to obtain an abortion for religious reasons. According to Church religious policy, a Sea Org member may not remain in the Order if he or she has a young child. The policy is based on the fact, as DeCrescenzo testified, that Sea Org members would be unable to carry out their responsibilities, which involve total commitment to one’s religious work, long hours and strict discipline, while also taking responsible care of young children. When DeCrescenzo became pregnant, her husband, who was also a Sea Org member, told her that he wanted her to obtain an abortion and did not want to leave the Sea Org. DeCrescenzo also testified that church officials tried to convince her to have an abortion because she and her husband had important religious responsibilities and it was the “greatest good for the greatest number of dynamics” for them to remain in the Sea Org, which they could not do if they had to care for a young child. DeCrescenzo testified that she was convinced to remain in the Sea Org, and to obtain an abortion to allow her to do so. DeCrescenzo acknowledged specifically that “[nJo one physically forced me to have an abortion” and that she ultimately was “convinced” to have an abortion, because it was “the greatest good for the greatest number of dynamics” and because she wanted to stay with her husband, There is no evidence whatsoever, and DeCrescenzo has never claimed, that anyone physically forced her to obtain an abortion. Nor (aside from the requirement that she leave the Sea Org if she attempted to raise a baby or young child) was there any evidence of any threat of negative practical consequence being made to her if she failed to obtain the abortion. The claim for “forced abortion” rests entirely on DeCrescenzo’s role as a Sea Org member and minister, and her being persuaded to have an abortion for the reasons identified above. Similarly, DeCrescenzo testified explicitly that she joined the RPF for religious reasons and was convi ced to do so based upon her religious 2asson2 10 beliefS. As she later posted on the Internet after having left the Church in 2004 and become a critic of Scientology: “I didn’t feel like a ‘victim’. And I still do not feel like a victim. Those things happened. I was part of it. J thought it was ‘all ok” and the ‘greatest good’. | am not going to pretend that I had nothing to do with it, no one held a gun to my head forcing me to do things.” Indeed, at her deposition, DeCrescenzo explicitly testified that while she was in the Sea Org and for over four years after she left, she never thought she had been compelled to go to or to remain in the RPF against her will: Q You didn’t tel them [her parents] that you had been held against your will at the RPE? A I did not tell them that. I didn’t feel that way at that time. Q You didn’t -- as of 2004, 2005, [after she left the Church] you didn't feel you had been held against your will? A No. Q You believed as of 2004, 2005, you volunteered to go to the RPF; correct? A believed that I thought that it was the greatest good for me to do it at that point. Q And you later changed your mind about it? A Yes. Q Okay. And when did you change your mind? A_ In 2008 when I started opening my eyes to things that I hadn't looked at before. ll So too with DeCrescenzo’s work assignments and “sec check: which she specifically testified, at length, were part of her then-sincere commitment to service as a member of the religious order. C. The Church’s Motion For Summary Judgment The Church filed a motion for summary judgment. It demonstrated by uncontroverted facts that the positions that DeCrescenzo held and the responsibilities she exercised were those of a “minister” within the meaning of the ministerial exception, which provides broad constitutional immunity toa church faced with allegations such as those DeCrescenzo interposed. See, e.g., Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 132 8. Ct. 694 (2012); Hope International University v. Superior Court, 119 Cal.App.4th 719 (2004).! ' The courts of this State have recognized that the ministerial exception bars . judicial interference with discipline or administration by churches of their clergy. The teaching of this line of authority is that secular courts will not attempt to right wrongs related to the . . . discipline or administration of clergy. Implicit in this statement of the rule is the acknowledgement that such wrongs may exist, that they may be severe, and that the administration of the church itself may be inadequate to provide a remedy. The preservation of the free exercise of religion is deemed so important a principle as to overshadow the inequities which may result from its liberal application. In our society, jealous as it is of separation of church and state, one who enters the clergy forfeits the protection of the civil authorities in terms of job rights. Higgins v. Maher, 210 Cal.App.3d 1168, 1175 (1989). accord Gunn v. Mariners Church, 167 Cal.Appth 206, 217 (2008) (following Higgins); 2855932 12 ‘The Church showed in its motion that the First Amendment and the ministerial exception meant that none of DeCrescenzo’s claims could be properly resolved by, or even put before, a secular trial court. The Church demonstrated that DeCrescenzo had agreed to undergo her abortion for religious reasons, -e., so she could remain a member of the order and continue her religious work. It showed that she repeatedly had stated publicly and testified that she participated in the RPF, “sec checks,” and other Sea Org practices for religious reasons (and never against her will, as she was a committed member of the religion). And it showed that the ministerial exception barred judicial interference with the terms and conditions of her religious employment and discipline. The Superior Court (Doyle, J.) denied the motion on April 27, 2016, refusing to adjudicate whether the immunity provided by the ministerial exception applied to DeCrescenzo and her claims. Rather the Court stated that since the ministerial exception might not apply to certain torts and since the claim by a church that an individual is a minister within the meaning of the exception could be examined by a court for alleged Mare Headley, v. Church of Scientology Intl, 2010 WL 3157064 at *6; Claire Headley v. Church of Scientology Intl., 2010 WL 3184389 at *5-6 (C.D. Cal. 2010) (summary judgment dismissing claims based on allegations including “forced abortion,” restrictions on leaving, censorship, discipline and manual labor in the Sea Org). 2855932 13 “subterfuge,” the question could not be resolved by summary judgment. Put simply, the Superior Court held that because there potentially might be an issue of disputed material fact, that mere possibility forecloses summary judgment without the need to determine whether there indeed was such a ‘material disputed issue on the record before it, Consistent with its legally wrong understanding of summary judgment procedures, particularly in the First Amendment context, the Superior Court also found, contrary to law, that summary judgment on similar issues was a disfavored remedy, to be issued (in the Court’s words) “once every three leap years.” Review by this Court is necessary to clarify the proper standards for summary judgment in cases such as this. D. ‘The Disqualification Nine business days after ruling on summary judgment, on May 10, 2016, Judge Doyle of the Superior Court issued a six-page minute order, containing a disclosure under Canon 3(E)(2) of the Code of Judicial Ethies. In the disclosure, Judge Doyle explained that he had a first cousin who is a long-time Scientology minister. The disclosure explained that if any members of his family were witnesses or potential witnesses, Judge Doyle would likely be forced to ° The Court, of course, need not decide the ultimate issue of whether summary judgment should have been granted, but instead could choose to remand after clarifying the proper standards and analysis to be applied. 28590 4 disqualify himself. This disclosure was the first time the Church learned of any family relationship between Judge Doyle and Scientology or the Sea Org. In fact, the Church shall call at trial one, and possibly two other, of the Judge’s family members; the one had worked closely with DeCrescenzo in the Sea Org. This disclosure was the first time that the Church’s staff responsible for the handling of the case, or its attorneys, knew of any family connection between Judge Doyle and Scientology. On May 16, two business days after receiving the disclosure, the Church submitted a verified statement to the Court in response to the disclosure, explaining that at least one family member of the judge was a likely trial witness, On May 18, 2016, Judge Doyle disqualified himself from the action. _ Apparently, the basis for disqualification was Judge Doyle's belief that his relationship with a potential family-member witness created a potential impression of bias. In so doing, however, Judge Doyle expressly declined to void the summary judgment ruling. Judge Doyle's minute order stated that “under the circumstances of this particular case ... the disqualification occurred at the time the Court was first made aware of the relevant facts on May 16, 2016, to wit: that certain family members of the judge were anticipated or 285593.2 15 potential witnesses. Accordingly, the Court declines to vacate any of its prior rulings, including its April 27, 2016 ruling.” E. The Church’s Writ Petition On June 2, 2016, the Church filed a petition for writ of mandate, seeking review of both the summary judgment ruling and the disqualification order. On July 13, 2016, the Court of Appeal (Second District, Division Three) summarily denied the petition. See Appendix, Ex. A. This petition for review followed. TV. REASONS WHY REVIEW IS NECESSARY REASONS WHY REVIEW IS NECESSARY A. Review Is Necessary To Clarify The Effect Of A Belated Ethical Disclosure By A Judicial Officer On Prior Rulings An order issued by a disqualified judge is void. Rossco, 149 Cal.App.4th at 1361-1363; see Christie, 135 Cal.App.4th at 776, Disqualification occurs when the facts giving rise to the disqualification occur. Jd. It does not occur when a judicial officer issues an order of disqualification. Jd. Nor, critically here, does it occur when a judge realizes the significance of previously-existing facts requiring disqualification. Jd, Nor does disqualification require a showing of actual bias. Id. Judges are also required to make disclosures not only of actual information revealing a disqualifying conflict, but of information Potentially relevant to judicial disqualification, Canon 3(E)(2)(a) of the 2855932, 16 Code of Judicial Ethics provides that “A [trial] judge shall disclose information that is reasonably relevant to the question of disqualification under Code of Civil Procedure section 170.1, even if the Judge believes there is no actual basis for disqualification.” This case involves the intersection of these two rules. Here, the trial court issued a mandatory disclosure after issuing a major ruling. The disclosure then revealed to the trial judge the existence of a disqualifying conflict, But the only reason the disqualifying conflict was not known to the trial court earlier was the trial court’s failure to issue the mandatory disclosure. In deeming the summary judgment order non-void, Judge Doyle relied upon Code of Civil Procedure Section 170.3(a)(4). That provision states that “If grounds for disqualification are first learned of or arise after the judge has made one or more rulings in a proceeding, but before the Judge has completed judicial action in a proceeding, the judge shall, unless the disqualification be waived, disqualify himself or herself, but in the absence of good cause the rulings he or she has made up to that time shall not be set aside by the judge who replaces the disqualified judge.”(emphasis added). However, for reasons made clear in a long series of California Judicial rulings, that provision has no application here, and this Court should so explain, 2835032 17 For example, in Giomeuti vy. Etienne, 219 Cal. 687, 689 (1934), a case on all fours with this one, a judge was part of a panel that signed an order. Subsequently to signing the judge learned that he was a relative of one of the attomeys representing a party. This Court held this sufficient to make the order “void” even. though the judge had not recognized the relationship at the time he signed the order, The judge was, in effect, charged with constructive knowledge of the disqualifying relationship, even though the judge did not have actual knowledge of it. Lower courts (but not the Superior Court or Court of Appeal here) have often agreed. In Urias v. Harris Farms, Inc., 234 Cal.App.3d 415, 419 (1991), a judge who apparently did not know his former law firm Tepresented the defendant in an action as to which he entered summary Judgment was later deemed to have been disqualified; the summary Judgment ruling was deemed void, fa. at 423-24. In Tatum v. S. Pac. Co., 250 Cal.App.2d 40, 41-42 (1967), a judge who entered judgment following trial had not realized, prior to entering judgment, that he was the owner of a small number of shares of stock in one of the parties. Id This, too, was sufficient to void the judgment entirely, despite the trial court’s lack of knowledge of facts requiring disqualification at the time judgment was 2855932 18 entered. Id.; see Christie v, 135 Cal.App.4th at 777 (summarizing these holdings) Nonetheless, as shown by the Superior Court’s actions here, the scope and effect of Code of Civil Procedure Section 170.3(a)(4) remains uncertain. And this is particularly true in the context of mandatory disclosures under Canon 3(E)(2)(a) of the Code of Judicial Ethics This Court should resolve this issue and provide guidance needed for litigants and judges faced with disqualification issues.* > Other cases have used Section 170.3(a)(4) to find an order by a disqualified judicial officer non-void. In Bates v. Rubio's Restaurants, Inc., 179 Cal.App.4th 1125, 1133 (2009), a trial court issued an order vacating a + prior ruling, and then separately concluded (on grounds that remained on the record somewhat unclear) that the “interests of justice” prevented the trial judge from participating in further proceedings in the matter. Id. The Fourth District held that because the disqualification was not based on facts that pre-existed the order vacating the prior ruling, Section 170.3(a)(4) applied. Id. Similarly, in Hernandez v. Vitamin Shoppe Indus., Inc., \74 Cal.App.4th 1441, 1451 (2009), the First District held that an order issued ata hearing where a judge was later found to have made intemperate comments was not void; while the intemperate comments (as another trial judge eventually found) created an impression of bias applicable to future hearings, there were not pre-existing facts at the time of the hearing at issue that would have supported disqualification, and thus the order was not void. 4 Moreover, because disqualification issues are reviewable only by writ, this Court will have no opportunity to address these issues aside from on a petition such as this one. 2s5s032 19 Review Is Necessary To Clarify That Summary Judgment Not Only Is Available To Determine Application Of The Ministerial Exception, But That It Is A Preferred Procedure The Superior Court declined to rule on whether the ministerial exception applies at all to DeCrescenzo’s claims, in whole or in part, finding that because in some cases claims seeking to invoke the exception ‘may turn out to be “subterfiige” or not dispositive of certain claims, it was not possible to decide the question on summary judgment in this case. In so holding, the Superior Court failed to determine whether there in fact were disputed material facts relevant to the criteria of what constitutes a ster under established legal doctrine, or even to analyze what that doctrine is. That was not only error, but error of grave constitutional significance which is likely to recur absent intervention by this Court. The trial court made no effort to analyze the undisputed facts in this case showing that the ministerial exception applies. In effect, the court ruled out summary judgment based on the ministerial exception because of the mere possibility that the assertion of the defense might be a subterfuge or not applicable to the torts alleged. This is clearly contrary to a wide range of state and federal cases holding that determination of the question is ultimately a matter of law, a rule that follows inexorably from the long development of case law involving the religion clauses and the ministerial 2asse2 20 : 5 enna anemia En exception. See Hosanna-Tabor Evangelical Lutheran Church v. EEOC, 1532'S. Ct. 694 (U.S. 2012) (holding ministerial privilege applied as a matter of law); Smith v. Raleigh Dist. of the North Carolina Conference of the United Methodist Church, 63 F. Supp. 2d 694, 706 (E.D.N.C. 1999) (“The applicability of the ministerial exception is a question of law for the court.”). Indeed, summary judgment is a “favored remedy” in cases involving First Amendment considerations “because unnecessarily protracted litigation would have a chilling effect upon First Amendment rights;” hence, “speedy resolution of such cases is desirable.” Shulman y. Group W Prods., Inc., 18 Cal. 4th 200, 228, (1998) (affirming summary judgment on free speech grounds). The Courts' concern about the chilling effect of protracted litigation in freedom of speech cases is even further heightened -in cases involving the First Amendment's religion clauses, where “the very Process of civil court inquiry into the clergy-church relationship can be sufficient entanglement [with religion so as to violate the religion clauses). Tis not only the conclusions that may be reached by [the court] which may impinge on rights guarantecd by the Religion Clauses, but also the very rocess of inquiry leading to findings and conclusions.” NLRB v. Catholic Bishop of Chicago, 440 U.S. 490, 502 (1979). For these reasons, determination of the applicability of the ministerial exception is a question of law to be decided by the Court. The 2858952 21 trial court’s failure to do so violated the Church’s important constitutional immunity, and the error should be corrected by this Court on writ review. To be sure, as with the application of any constitutional provision, application of the rules of law will turn upon the facts. Thus, in Hope International University v. Superior Court, 119 Cal.App.Ath, 719, 730, the court, while emphasizing the special importance of applying summary judgment procedures to questions of the applicability of the ministerial exception, found that in that case a genuine material issue of fact existed as to whether the legal criteria for applying the exception existed. That is to be sharply contrasted with the approach of the Superior Court here, which, misapplying Hope, refused even to consider whether any such material dispute existed or even to reference the applicable legal standards, In short, the decisions below misapply and conflict with other decisions concerning the applicability and importance of summary Judgment procedures to determinations of the applicability of the ministerial exception. Intervention by this Court is necessary to provide guidance in this critical area of constitutional law, of core significance to all California religious institutions. 1, The Development Of The Ministerial Exception Doctrine In 1871, the United States Supreme Court, applying federal common law, held that matters internal to religious organizations “which concern{] 2855952 22 theological controversy, church discipline, ecclesiastical govemment, or the conformity of the members of the church to the standard of morals required of them” are beyond the ken of judicial authorities, and that those who participate in such religious bodies do so subject to the internal rules of those bodies. Watson v. Jones, 80 U.S. (13 Wall.) 679, 733-34 (1871); see Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 115-16 (1952) (recognizing that the Watson principle is mandated by the First Amendment); Maxwell v. Brougher, 99 Cal.App, 2d 824, 826 (1950) (following and quoting Watson). Watson and Kedroff were quoted and approved in the Supreme Court's recent decision affirming the ministerial exception doctrine in Hosanna Tabor v. EEOC, 132 S. Ct. 694, 704 (2012). In subsequent cases, the United States Supreme Court made clear that the judiciary is constitutionally incompetent to resolve disputes conceming matters of religious doctrine or practice. Presbyterian Church ¥. Mary Elizabeth Blue Hull Memorial Presbyterian Church, 393 US. 440, 450 (1969) (a court may not “make its own interpretation of the meaning of church doctrines”). These principles were summarized in Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 713 (1976), where the Court held that courts may not involve themselves in “matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law.” The Milivojevich Court emphasized that matters of internal church discipline were particularly ill-suited to civilian judicial review. 426 U.S. at 717 2355952 23 (“questions of church discipline and the composition of the church hierarchy are at the core of ecclesiastical concern”); accord Hosanna Tabor 365 USS. at__, 132 S. Ct. at 704 (discussing Milivojevich). ‘The ministerial exception derives from and is a specific application of this long established doctrine prohibiting civil authorities from interfering with matters of religious discipline, faith, internal organization, or ecclesiastical rule, custom, or law. Hosanna Tabor 565 US. at__, 132 S.Ct. at 706; see also Alcazar, 598 F.3d at 673, and 627 F.3d at 1290-91 (en banc) (“[T]he ministerial exception derives from both the Free Exercise and Establishment Clauses of the First Amendment”). The initial cases arose when ministers attempted to invoke civil rights and employment law statutes to challenge actions by their churches relating to their employment or discipline. See, e.g., Catholic Charities of Sacramento, Inc. v. Superior . Court, 32 Cal. ath 527, 543-44 (2004); Schmoll v. Chapman Univ., 70 Cal.App.dth 1434, 1442-44 (1999). “[T]he ministerial exception doctrine is based on the notion a church’s appointment of its clergy, along with such closely related issues as clerical salaries, assignments, working conditions and termination of employment, is an inherently religious function because clergy are such an integral part of a church’s functioning as a religious institution.” Roman Catholic Archbishop of Los Angeles v. Superior Court, 131 CalApp.4th 417, 433 (2005) (emphasis added) (citing Werft v. Desert ‘Sw, Annual Conference, 377 F.3d 1099, 1101 (9th Cir. 2004). Allowing 2855032 24 the state to intrude in such matters “results in excessive entanglement with religion in violation of the establishment clause,” and “violate[s] the free exercise clause” because “churches . .. must have power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Silo v. CHW Med. Found., 27 Cal. 4th 1097, 1106 (2002) (quoting Schmoll, 70 Cal-App.4th at 1442-43), The ministerial exception “is robust,” precluding “any inquiry whatsoever into the reasons behind a church's ministerial employment decision, .” EEOC v. Roman Catholic Diocese of Raleigh, 213 F.3d 795, 801 (4th Cir. 2000), The exception “refers not only to the selection of ministers but more broadly to “employment decisions regarding ministers.”” Alcazar, 598 F.3d at 674. Thus, within the exception’s reach are claims related to “the functions which accompany such a selection [, including] the determination of a minister's salary . . . and the duty he is to perform in the furtherance of the religious mission of the church.” Bollard, 196 F.3d at 947. This is so because the ministerial exception “applies as a matter of law across statutes, both state and federal, that would interfere with the church-minister relationship” and “encompasses all tangible employment actions.” Aleazar, 598 F.3d at 673, 674. Significantly, “a minister’s working conditions . .. are part of the minister's employment relationship with the church.” Werfi, 377 F.3d at 1103 (emphasis in original); Marc Headley, v. Church of Scientology Intl, 2010 WL 3157064 at *5 (C.D. Cal. 2855032 25 ey 7010). Thus, the ministerial exception applies to “any federal or state cause of action.” Werfi, 377 F.3d at 1100 n.1. ‘The First Amendment considerations that underlie the exception ‘apply to virtually every aspect ofthe relationship between a church and its clergy. Milivojevich, 426 U.S. at 713, Notably, the appropriateness of a church’s disciplinary actions respecting a minister is beyond the cognizance of the civil courts. 1d. at 717. “Constitutional concepts of due process, involving secular notions of ‘fundamental fairness’ or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.” Jd. at 715, 2 The Doctrine ies Broadly To Church Officials =e Doctrine Applies Broadly To Church Officials Courts recognized that the principles that underlie the doctrine are not unique to the colloquial understanding of the term “minister,” and that many religious workers perform important religious duties, and/or must ‘meet specific religious qualifications or criteria to hold their positions, Accordingly, courts held that the ministerial exception applies to the ‘lationship of churches with such religious workers tothe same extent as it does with the more traditional concept of “ministers.” “[t should be noted that the term ‘ministerial exception’ is judicial shorthand, but like any ‘rope, while evocative, its imprecise. The ministerial exception protects more than just ‘ministers’ , -” Rweyemamu, 520 F.3d at 206. As Judge Richard Posner has observed, “the minister’s exception is better termed the 2855932 26 “internal affairs doctrine” because ‘minister's exception’ is too narrow ... -” Schleicher v. Salvation Army, 518 F.3d 472, 475 (7th Cir. 2008). In Hosanna Tabor, the United States Supreme Court while declining to adopt a bright line definition of a “minister,” signaled that the exception has a broad sweep by applying it, as a matter of law, to a teacher at a Lutheran school who taught six secular classes, but who accepted a religious “call” and taught one religious course daily. In Alcazar, the Ninth Circuit en banc also resisted providing a single definition, holding, again as @ matter of law, that a trainee for the priesthood who spent most of his one year performing secular tasks such as cleaning dishes nevertheless fell within the exception. The most commonly articulated test, adopted by California courts, is whether the worker’s “primary duties consist of teaching, spreading the . faith, church governance, supervision of a religious order, or supervision or Participation in religious ritual and worship,” or “is important to the spiritual and pastoral mission of the church.” Hope Int'l Univ. v. Superior Court, 119 Cal. App.4th 719, 734 (2004) (quoting Schmoll, 70 Cal. App.4th at 1439); Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 703 (7th Cir. 2003) (applying exception to non-ordained press secretary whose duties included outreach to community); see also Ross v. Metro. Church of God, 471 F. Supp. 2d 1306, 1310 (N.D. Ga. 2007) (collecting cases applying exception to musical director, organist, choir director, resident in 2455932 27 hospital pastoral program, religion teacher at parochial school, nun, kosher food supervisor, and director of religious education). As the Court emphasized in Hosanna Tabor, any test cannot focus ‘on a mechanical calculation of how much of a minister's time is devoted to his religious duties. The plaintiff in that ease spent only 45 minutes per day Performing religious tasks, but the court cautioned, “{t]he issue before us, however, is not one that can be resolved by a stopwatch.” Hosanna Tabor v. EEOC, 1328. Ct. 694, 709 (2012). See also Alcazar, 627 F.3d at 1292 (minister in training claimed to spend most of his time performing manual labor).” The ultimate question must be whether the employee's work “is important to the spiritual and pastoral mission of the church.” Hope Int! Univ. v. Superior Court, 119 Cal.App.4th at 734. 3. The Doctrine Applies Here Here, DeCrescenzo’s testimony establishes that by any definition, her ‘work at the Church fell within what should have been an easy case for the application of the ministerial exception, as a matter of law. DeCrescenzo chose to devote her life to work for her religious order. She underwent extensive training. For six years her responsibility was to ensure that Sea Org members at the Church were properly performing their religious duties, She conducted hundreds of investigations for management under- performance or ethies violations, conducted sec checks hundreds of times, and recommended remedial programs. 283593.2 28 Later, during her time at the RPF, DeCrescenzo supervised the provision of (and herself provided) auditing and confessionals, DeCrescenzo’s own testimony irretrievably demonstrates that she was a “mninister” within the meaning of the cases. Despite this evidence, the Superior Court devoted exactly no attention either to the cases defining the broad scope of the exception or to the evidence demonstrating that DeCrescenzo easily falls within it. Instead, the Superior Court found that the mere possibility that a minister’s status was a “subterfuge” was enough to send the case to ajury. But that is directly contrary to the purpose of the ministerial exception. ‘This Court's review is necessary to clarify and explain that the privilege applies as a matter of law. CONCLUSION This case presents the ideal vehicle to review both a pressing issue of judicial administration and critical issues concerning freedom of religion in California. This Court should accept review. 285593.2 29 Dated: July 25, 2016 Respectfully submitted, pe Bert H. Deixler KENDALL BRILL & KELLY LLP Eric M. Lieberman RABINOWITZ, BOUDIN, KRINSKY & LIEBERMAN, P.C. Attomeys for Petitioner Church of Scientology Intemational 2855932 30

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